The U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces federal laws prohibiting employment discrimination, today voted 4-1 to approve updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The updated EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Questions and Answers (Q & As) about the EEOC’s Enforcement Guidance are at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.
“The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders,” EEOC Chair Jacqueline A. Berrien stated in a press release on the EEOC website.
Summary of Updated Guidance
The EEOC had originally issued three separate policy documents in February and July 1987 and in September 1990 explaining when the use of arrest and conviction records in employment decisions may violate Title VII. The updated EEOC Guidance “builds on longstanding court decisions and guidance documents that the EEOC issued over 20 years ago” and “focuses on employment discrimination based on race and national origin.”
The EEOC Guidance discusses the differences between arrest and conviction records:
- Arrest: “The fact of an arrest does not establish the criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest is the conduct makes the individual for the position in question.”
- Conviction: “In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.”
The EEOC Guidance also discusses disparate treatment and disparate impact analysis under Title VII:
- Disparate Treatment: “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”
- Disparate Impact: “An employer’s neutral policy (e.g., excluding applications from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.”
The Guidance also describes two circumstances in which the EEOC believes employers will consistently meet the “job related and consistent with business necessity” defense:
- “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
- The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII).”
In addition, the updated EEOC Guidance also states that:
- “Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.”
- “State and local laws or regulations are preempted by Title VII if they ‘purport to require or permit the doing of any act which would be an unlawful employment practice’ under Title VII.”
Employer Best Practices
The updated guidance from the EEOC recommends the following ‘Employer Best Practices’ for employers considering criminal record information when making employment decisions.
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decision makers about Title VII and its prohibitions on employment discrimination.
Developing a Policy
- Develop a narrowly tailored written policy and procedures for screening criminal records. Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine specific offenses that may demonstrate unfitness for performing such jobs. Identify criminal offenses on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence. Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultants and decision makers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use if for the purpose for which it is intended.
The full EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The materials for the EEOC public meeting held April 25, 2012 on the use of arrest and conviction records, including testimony and transcripts, are available at http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm.
To keep employers informed about the updated EEOC Guidance on employer use of arrest and conviction records, Employment Screening Resources (ESR) will offer updates in the ESR News blog and will soon be scheduling a webinar on the subject.
For more information, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by the National Association of Professional Background Screeners (NAPBS) – at http://www.ESRcheck.com.
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The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at firstname.lastname@example.org.